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Attorney General Holder Agrees with the Fifth Circuit: Supreme Court Has the Right to Overturn Obamacare

US Attorney General Eric Holder answers a question during a press conference at the US Embassy in Beijing on October 21, 2010. The United States and China have a 'fundamental disagreement' over the case of jailed Nobel Peace Prize winner Liu Xiaobo, US Attorney General Eric Holder said in Beijing. (Image credit: AFP/Getty Images via @daylife)

Earlier this week, as you may know, Judge Jerry Smith of the Fifth Circuit Court of Appeals asked Attorney General Eric Holder to explain whether or not he agrees with the President that it would be “unprecedented” for the Supreme Court to strike down a law that had been duly passed by Congress. Holder has responded, with a three-page, single-spaced letter, as Smith requested. I’ve posted the full letter here. Here is Holder’s introduction.

Dear Judge Smith, Judge Garza, and Judge Southwick:

This Court’s letter of April 3, 2012 requested a response to questions raised at oral argument in this case, Physician Hospitals of America v. Sebelius, No. 11-40631. From the electronic recording of the argument, I understand the Court to have requested the views of the Department of Justice regarding judicial review of the constitutionality of Acts of Congress. The Court indicated that its inquiry was prompted by recent statements of the President.

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.

The government’s brief cites jurisdictional bars to the instant suit and urges that plantiffs’ constitutional claims are insubstantial. See Appellee Br. of the United States at 17-38. At no point has the government suggested that the Court would lack authority to review plaintiffs’ constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for disposition. The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

Holder goes on to review the relevant case law, and notes that “the Executive Branch has often urged courts to respect the legislative judgments of Congress.” Holder concludes by stating that “The President’s remarks were fully consistent with the principles described herein.”

UPDATE 1: Patrick Brennan has posted a nice summary of Holder’s letter over at National Review:

First, he suggests that “the power of the courts to review the constitutionality of legislation is beyond dispute,” citing Marbury v. Madison. However, Holder notes that “the Supreme Court has further explained that this power may only be exercised in appropriate cases” and “we have argued that this Court lacks jurisdiction to hear the case.”

Secondly, Holder asserts that “in considering such challenges, Acts of Congress are ‘presumptively constitutional,’” and “and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is ‘strong.’” Therefore, he argues, “in light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional.”

Finally, Holder suggests that, in some sense, President Obama’s remarks weren’t “unprecedented” either, because “while duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress” and “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.” Moreover, “the courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”

Holder concludes that “the President’s remarks were fully consistent with the principles described herein,” and therefore represented no inappropriate or unorthodox view of the Court’s powers of judicial review.

UPDATE 2: Grace-Marie Turner writes that Holder “used the letter to reiterate President Obama’s warning to the Supreme Court to uphold the health-care law:”

Holder acknowledged in his two-and-a-half-page letter the validity of “long-established precedent concerning judicial review of the constitutionality of federal legislation.” He said, “The power of the courts to review the constitutionality of legislation is beyond dispute.”

But then the warnings began. Holder said his letter “does not concern any argument made” in the case before the Supreme Court, yet his letter touched on the Commerce Clause, the Necessary and Proper Clause, severability, and the fundamental constitutional challenge to a major provision in the law — all key issues aired during oral arguments before the Supreme Court last week.

In his letter, Holder continued to press points that the president implied in his controversial statement on Monday.

Holder said that the Court is required to assume that any law passed by Congress is constitutional. The courts must consider that “Acts of Congress are ‘presumptively constitutional.’”

Further, “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder continued — i.e., Congress and the president know best.

Holder also warned against the Supreme Court’s striking down the whole law if part (e.g., the individual mandate) were declared unconstitutional. Quoting a 2006 case, Ayotte v. Planned Parenthood of Northern New England, Holder wrote: “In granting relief, the courts ‘try not to nullify more of a legislature’s work than is necessary’” because they recognize that a “‘ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”

Then the attorney general tried to help the president back out of the outrageous statements he made on Monday by focusing on a narrower issue. On Tuesday, the president told newspaper editors that what he really meant on Monday in his “unprecedented, extraordinary” comment was that the Court had a long tradition of giving Congress leeway to expand its reach through the Commerce Clause.

“The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends,” Holder wrote.

And just to get in all of the constitutional markers, Holder’s letter said: “The Supreme Court has explained: ‘This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.’”

Then, a final jab: “The President’s remarks were fully consistent with the principles described herein,” Holder concluded.

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Title should read “Attorney General Holder states obvious.” The Fifth Circuit judge never really took a position, and the only logical reason a judge would ever request additional briefing like this (normally it is from someone involved in case), is when they are concerned that it is an obstacle. Because the President’s opinion (no matter who obtusely misunderstood) could never affect the Court’s jurisdiction, I had assumed that Judge Smith was genuinely concerned that there was no such thing as judicial review. I mean he already knew the DOJ’s position before making this order. As much as we lawyers would like to forget about having to learn about Marbury, it is kind of sad when senility actually causes that for a federal judge

AG Holder’s letter (if he actually wrote it instead of only signing it) was heavy on “jurisdiction of the case at hand”, federal court power for “judicial review” and “presumption of constitutionality”. Naturally, it was rather light directly addressing a federal court’s power to strike down an act of Congress, not simply reviewing it and assuming constitutionality. Despite begrudgingly admitting “striking down an Act of Congress and a “nullify”reference, it was described as doing so in a negative context, using the word “forbid” with respect to overturning a law and not overturning more than “necessary”. A very well crafted letter.

I’ll agree with Leroy how unorthodox and inappropriate the request was. Judge Smith was injecting himself in a political realm by scolding the president and designating a written assignment to a member of the DOJ not participating in his courtroom (the Attorney General). His request was not even relevant to the case at hand. Even worse, he allowed his personal animus toward the president and Obamacare to taint his stature on the bench as an arbiter of impartiality. Using the term “Obamacare” more than once didn’t help. It also sets a bad example for all federal judges and especially young lawyers who aspire to enjoy the honor of a judicial appointment.

I agree with you Buford, it was very obvious the judge had political motivations for asking this from our US Attorney General. Obama’s comments were relevant to the US Supreme Court’s case not this case where the judge was presiding.

Also I also caught his use of “Obamacare” which was coined by republicans as a derogatory term for the health care law passed by a democratic congress. I can take a guess what political affiliation this judge has.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step” This is the quote. What I read is President Obama giving an EXAMPLE -”what I’ve heard from conservative commentators that for years what we’ve ‘HEARD’ is…….” The world has gone crazy. Now we even have a government coop in Michigan. Carl Rove can be the dictator.

What is truly, pathetically sad about all this is that it all boils down to Obama’s use of the word “unprecedented.” All of Obama’s detractors have suddenly turned into little children going crazy over an obvious exaggeration. Unprecedented “for the last 85 years” or “in the modern era” would have fixed everything b/c any moron would realize the comment was not made in a vacuum. They ignore the fact that he was a con law prof, that everyone in this country knows SCOTUS can overturn laws, that he was obviously speaking in the context of the commerce clause and economic regulation (see next point and common sense), the comment was a small part of a speech (the rest of which has been ignored), and that he subsequently clarified what he meant (obviously he gave way too much faith in people and their basic reasoning).

I mean you really have to be a complete moron (or deranged) to think it is reasonable to conclude that he doesn’t believe in judicial review and that this is how he would profess it to the world. Oh my GOD! A politician exaggerated, he must be Hitler. Are these conservatives even listening to their candidates!?

I seriously have no idea why he would want to be President again. I mean it has gotten to where federal judges have lost their mind and can’t even conduct their duties with any semblance of dignity (see the disgraces of Judge Smith and Judge Cebull). Despit the clear need for such actions, I don’t even think they are going to file a motion to recuse or an ethics complaint b/c Fox News will just say this is part of a war on the judiciary. If they say this about what he did, I wonder how they classify their campaign against the judiciary the last 20+ years.

Leroy, This is not merely an exaggeration. How would adding “for the last 85 years” or “in the modern era” to his speech have fixed anything? US vs. Lopez (1995) and US vs. Morrison (2000) obviously occurred in the last 85 years and are in the modern era. In both cases the Supreme Court rejected Commerce Clause legislation enacted by Congress.

Obama never held the title of professor, only senior lecturer. Now that he is POTUS, the university has tried to thread the needle and “consider” his service as that of a professor. Would they try this hard for someone who never made it to national office?

Obama’s reference to “activism”, “strong majority” and “duly constituted” were erroneous, uncalled for, or both. Name calling the highest judges in the land activists is irresponsible and unbecoming of the president. This is the second time he’s taken this questionable course of action. At the 2010 State of the Union address, he humiliated the Supreme Court in front of Congress and the entire country on national television deriding the Citizens United case.

A House vote of 219-212 on Obamacare was a passing percentage of 50.8%, hardly a “strong” majority by any definition. The Senate was 60-40 which is a better spread, but when there is literally no bi-partisan passage in either house (of which both are needed to pass anything), the president embarrasses himself.

He apparently misspoke using the word “constituted” in an attempt to claim the heath care law constitutional. He may have reverted back to his previous delusion that he can unilaterally deem a law valid or not such as DOMA. There are also the additional constitutional violations of the Libya invasion, non-recess appointments to the NLRB and director of Dodd-Frank commission and mandated coverage for contraception and abortion pills mandated on faith based institutions.

It’s one thing to criticize a Supreme Court decision, but not while they’re sitting in front of you to a national audience and calling them activists if they strike down a law you signed. This is a particularly odd thing to do before a ruling is made. Making such a premature complaint while a ruling is still pending shows a lack of restraint and an attempt to intimidate the justices. That is not wise, as all nine of them will do what they believe regardless of what someone else thinks about them. Even if that ‘someone else’ appointed them to the job they currently hold for life.

I strongly believe there should be term limits on all judges and every member of Congress. Too many have made politics and judicial appointments a career vocation, amassing too much power and influence over the country. Yes Leroy, some judges like Smith sometimes lose their way, if even for a little while. The Founders never thought anyone in their right mind would want to stay in politics or courtrooms instead of returning to their hometown in the private sector.

I posted this in a previous article, but I will paste it here because I think it addresses your first point and why unprecedented is either a perfectly acceptable choice of words (if you take unprecedented to mean “not supported by precedent”) or simply an exaggeration.

Lopez and Morrison were criminal statutes that required “heaping inference upon inference” to reach any jurisdictional nexus (interstate commerce). This is not a criminal statute and the effect on interstate commerce is plain. While failing to note this distinction is problematic because it ignores all context of the President’s comments, you also fail to discuss Raich.

Even with the fact that Lopez and Morrison were not economic statutes (just feeble attempts to use the nearly unlimited power granted by the Commerce Clause), these cases are still viewed as anomalies after SCOTUS’s subsequent decision in Raich, which upheld use of the Commerce Clause for a criminal statute. So even if you are going to ignore the obvious differences b/t the present situation and Lopez and Morission, you should at least provide more than half of the picture.

Regarding point 2, you are correct I suppose. I did not know this technicality, but it really appears to be splitting hairs. http://factcheck.org/2008/03/obama-a-constitutional-law-professor/

Regarding your next point about other word choices, I never commented on any of these things and I am not really sure that they are relevant to anything I said. These things don’t really have much to do with his stance on judicial review or Judge Smith’s actions.

Presidents have been making comments like this about the judiciary forever. It is nothing close to new or even particularly scandalous, particularly when you think about how bad some of the comments or actions of past presidents were with respect to the courts. I did not get the impression any of SCOTUS was humiliated (angry maybe) at his comments in the state of the union address, but there is nothing wrong about him calling them out. If he genuinely thinks that it was a terrible decision and that it hurts the country, then would you rather he say nothing? Most people do not pay any attention to SCOTUS and that decision definitely was relevant to the state of the union. Judicial activism has been thrown around forever so pardon me if I am not appalled at his rather tame statements. His comments won’t even apply to SCOTUS unless they shoot Obamacare down anyway.

I agree his statements regarding a “strong” majority was an extreme exaggeration, but puffery from a politician is hardly surprising. The fact is, that statement really has no effect on his point. The Courts are supposed to use extreme deference when ruling on laws and they are supposed to do everything they can to salvage laws that they find unconstitutional (like severing, most favorable interpretation, etc.). Courts do not look at how strong a majority passed said laws, so I once again fail to see what this has to do with his or my points.

I think you are way off on your “constituted” conclusions. Given the sentence he used it in, it seems abundantly clear he meant to say “considered” (if he made a mistake at all). I don’t think you know what constituted means though http://www.thefreedictionary.com/constituted. I don’t know why you would think this was a second attempt to claim the law is constitutional (considering that was whole point of his comments and he had already made this point).

“He may have reverted back to his previous delusion that he can unilaterally deem a law valid or not such as DOMA.” Ha, he never deemed it invalid. It is also not a delusion to think he can unilaterally decide not to enforce DOMA because he has done so successfully and there is some support for the belief that the President’s oath to uphold the Constitution allows him to refuse to enforce unconstitutional laws. This is extremely murky though and is not something that should be done. I think that DOMA is unconstitutional though, so I doubt history is really going to demonize him for this decision. Once again, I fail to see this or any of your other points about Libya, Dodd-Frank, and mandated coverage have anything to do with the topic of the article, the speech, or my comments. The faith based thing will surely be addressed by SCOTUS and they have been very friendly to religions past 15 years so I would be too worried.

“It’s one thing to criticize a Supreme Court decision, but not while they’re sitting in front of you to a national audience and calling them activists if they strike down a law you signed.” were any of members of SCOTUS even there? Would you rather that he make these comments one on one with them? because that would be way worse and completely improper. He has 1st amendment rights and I think they are pretty freaking used to being called activists by now. They have life tenure, he does not. I don’t think they are too worried. You pretty much undercut your whole point about intimidation, etc. when you note that they are just going to do what they want. It really is not odd for presidents to do this. I mean it was really incestuous throughout the first half of our county’s history and it happened all the time. It is not exactly uncommon in the modern era either. bush, reagan, FDR off the top of my head.

I like the idea of life tenures on federal judges b/c it has traditionally helped keep politics out of the courtroom. They don’t have to politic or campaign etc.. However, this justification really appears to be breaking down. We may have to come up with something else, but I don’t think there is any reason to think it is broken yet. Trust me, state courts are like the wild west compared to federal court and most lawyers want cases to be in federal court b/c the chances of having the law applied correctly and the rules followed are waaaay higher.

Leroy – this has nothing to do with using the word “unprecedented”. Obama never should have been saying anything at all. He was supposed to let the SC do their jobs without being subjected to ANYONE’s political persuasion, comments, shame, surprise, whatever. They are supposed to be a non-biased group and for the “president” to use his “throne” in this way can be viewed as nothing except low class, desperate, disrespectful and unethical. Obama is 1/3 of the government not 100% of the government. The SC was put in place to keep men like Obama in check..to stop them from being the dictator he clearly wants to be. Smith was reminding Obama of his place and insuring ethics be followed without Obama’s not so subtle coersion. Apparently he doesn’t have two votes to buy this time around…